Witnesses take stand against Madison County Probation Director Karen Birch

WAMPSVILLE - The details behind charges lodged against suspended Madison County probation director Karen Birch were made public for the first time Tuesday since her suspension nearly a year ago.

Birch has been on paid leave since Nov. 29, when an internal investigation was launched into complaints made against her. The results of that investigation have formed the basis of the county's disciplinary case. Since being placed on paid administrative leave, Birch has continued to draw her $66,926 annual salary.

County officials remained tight-lipped on Birch's employment status for more than five months until acknowledging in May that she was on administrative leave. Under Civil Service Law, Birch cannot be fired until hearings are conducted into the charges. Overseeing those hearings is John Trela, who the county will pay $1,400 a day for his services. Trela, an Albany-based attorney specializing in arbitration, is the third in a line of attorneys who have been appointed after the first two recused themselves.

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On Monday, a small portion of the first disciplinary hearing was open to the public as John Corcoran, Madison County's contracted labor relations attorney, and Birch's attorney Jon Lovett gave opening arguments. The hearing was subsequently closed so a witness could tetify in secret and reopened Tuesday morning for the remainder of the county's case presentation.

On Tuesday, three witnesses testified to the details of the charges against Birch, who is accused of failing to remove a female probation officer from a case in which a probationer allegedly threatened her and for allowing another probation officer to work and drive drunk.

New York State Police Investigator Dennis Dougherty explained the circumstances surrounding the threats. He said a probationer had told a fellow county jail inmate that he was going to kill his probation officer.

When police found out about the threats, they hid a recording device on the inmate who heard the threat and sent him in to talk to the man who made it. On the tape, the probationer admitted making the threats, but said he was in a "bad place" when he made them and was now more interested in "riding out" his sentence than creating more problems, Dougherty said Tuesday.

Dougherty took the recording and the information he had gathered to the DA's office, saying he believed the probationer "posed a significant threat" to the probation officer.

Chief Assistant District Attorney Bob Mascari reviewed the case and agreed the probationer was dangerous. He testified Tuesday that the DA's office considered prosecuting the man for aggravated harassment or for making terroristic threats. But, because those statutes require the person to have the capability of carrying out the threat at the time it's made - he could not because he was in jail - and the threats must be made directly to the victim, Mascari said he could not be prosecuted.

Mascari did, however, feel the probation officer should be taken off the case because of the danger, and because it would be hard to complete a pre-sentencing report while remaining neutral. Mascari said he considered the probationer "unstable and dangerous."

The probation officer was not taken off the case.

When the probationer was released from jail, the probation officer was not notified; when she found out, she told police she was even more worried. Dougherty said he notified area police agencies of the threats and the harm the probationer could cause.

Addressing charges that Birch failed to act when a probation officer came to work drunk, former probation officer Angela DeMichele testified.

According to DeMichele, on her third day on the job in December 2010, another female probation officer came to work noticeably drunk.

She said her co-worker looked disheveled and was wearing the same clothes she had worn the day before; her eyes were glazed and she had a strong odor of alcohol on her breath.

DeMichele said she was professionally trained to detect intoxication when she worked in the Herkimer County Probation Office.

DeMichele and another new probation officer were scheduled to accompany that co-worker to court that morning. DeMichele offered to drive because she knew her co-worker was impaired. Her co-worker insisted and in what DeMichele called an "egregious error on my part," got in the car with her and rode from Wampsville to Oneida. Once at court, DeMichele said Birch and another supervisor showed up, although she was uncertain why, and allowed the two newly-hired probation officers to return to the office with them.

Later that day, DeMichele attempted to address the issue with Birch; DeMichele said Birch was uninterested and she was "left with the impression that nothing would be done." Several other times after that incident, DeMichele said the same probation officer came to work with alcohol on her breath. DeMichele said Birch took no action in those instances, either.

Last August, DeMichele met with Birch for a routine case review. During the meeting, Birch said she didn't like DeMichele's "style" and the way she worked with offenders and told her "not to treat (probationers) like human beings," according to DeMichele's testimony Tuesday.

DeMichele resigned last September, saying the workplace was hostile and she felt harassed. She said she felt her cases were micromanaged and she was treated unfairly. She filed for unemployment but was denied. That decision was later overturned on appeal.

Birch's attorney, however, asserted Tuesday that DeMichele never directly mentioned Birch in her unemployment appeal and questioned the validity of her claims against Birch.

Lovett questioned whether DeMichele had an audio recording of the conversation in which Birch told her not to treat probationers as human beings. When DeMichele said she did not, Lovett said such a recording did exist and challenged that those statements were actually said.

If it's true that a recording does exist, Corcoran said it would be subpoenaed for the county's case. Lovett's reply indicated it would not be made readily available.

"Good luck getting it," Lovett said, accusing the county of denying Birch access to records in a lawsuit she filed in District Court.

That lawsuit, filed in May against the county, demands $1 million in compensation and punitive damages for Birch. In the lawsuit, Birch claims her right to be free from retaliation, along with her First and 14th Amendment rights were violated. She accuses county officials of imposing a "gag order" on her, preventing her from contacting anyone at the county but Corcoran.

The lawsuit also asserts that Birch was denied due process after county officials made a predetermined decision that they would fire her before proper disciplinary hearings were conducted, a point Lovett has argued in recent hearings.

The lawsuit is still pending before District Judge Glenn Suddaby. Deadlines for motions to be filed are set for next summer.

As far as disciplinary proceedings go, two dates have been set for Jan. 16 and 17. Corcoran was expected to be finished with his half of the arguments but in light of the possibility that a recording exists pertinent to one of the charges, he has asked to use one of the January dates to continue his case.

Although Lovett said he would not need more than a day to make his arguments, he was unwilling to use whatever time is left when Corcoran was done and asked for new dates to be scheduled. Corcoran called his request an "unreasonable delay" in the proceedings, but scheduled two days in the following week - Jan. 23 and 24 - for Lovett and any rebuttal.